Illinois “Bans the Box” with New Legislation

On Saturday, July 19, 2014, Governor Quinn signed the Job Opportunities for Qualified Applicants Act (the “Act”), which limits private sector employers with 15 or more employees from inquiring into the criminal history of job applicants. Specifically, covered employers are prohibited from inquiring into or requiring applicants to disclose their criminal history early in the pre-employment process. Instead, the Act now requires that applicants be notified of their selection for an interview, or given a conditional offer if there is no interview, before any such inquiry or disclosure. This is similar to Illinois’ prohibition against inquiring about an applicant’s criminal history on State employment applications.

The parameters as to when and what criminal history may be requested from applicants under state law can vary from each jurisdiction. Illinois now joins four other states—Hawaii, Massachusetts, Minnesota and Rhode Island—and over 20 cities and counties that have “banned the box” for private employers, meaning they are generally prohibited from asking on the employment application whether the applicant has been convicted of a crime. However, the Act provides exemptions for certain positions, such as those where federal or state law requires the exclusion of applicants with certain criminal convictions, an applicant’s criminal history prohibits them from obtaining a required bond, or employees are licensed under the Emergency Medical Services Systems Act.

While the Act “bans the box” on employment applications, it does not completely eliminate an employer’s ability to learn about an applicant’s criminal history. Employers are still free to inquire about convictions and the surrounding circumstances, just at a later date. The Act also does not prohibit employers from making decisions based on that criminal history. That being said, when making decisions based on criminal histories, employers should also consider recent guidance on this subject issued by the EEOC.

The Act goes into effect on January 1, 2015. In the next six months, employers should review their employment applications, as well as their hiring and background check processes, to ensure that they are complying with this new Illinois law and the recent EEOC guidance.

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